International Financial Law Prof Blog

Editor: William Byrnes
Texas A&M University
School of Law

Wednesday, March 8, 2017

IRS Has Refunds Totaling $1 Billion for People Who Have Not Filed a 2013 Federal Income Tax Return

The Internal Revenue Service announced today that unclaimed federal income tax refunds totaling more than $1 billion may be waiting for an estimated 1 million taxpayers who did Irs_logonot file a 2013 federal income tax return.

To collect the money, taxpayers must file a 2013 tax return with the IRS no later than this year's tax deadline, Tuesday, April 18.

"We’re trying to connect a million people with their share of 1 billion dollars in unclaimed refunds for the 2013 tax year,” said IRS Commissioner John Koskinen. “People across the nation haven’t filed tax returns to claim these refunds, and their window of opportunity is closing soon. Students and many others may not realize they’re due a tax refund. Remember, there’s no penalty for filing a late return if you’re due a refund.”

The IRS estimates the midpoint for potential refunds for 2013 to be $763; half of the refunds are more than $763 and half are less.

In cases where a tax return was not filed, the law provides most taxpayers with a three-year window of opportunity for claiming a refund. If they do not file a return within three years, the money becomes the property of the U.S. Treasury. For 2013 tax returns, the window closes April 18, 2017. The law requires taxpayers to properly address mail and postmark the tax return by that date.

The IRS reminds taxpayers seeking a 2013 refund that their checks may be held if they have not filed tax returns for 2014 and 2015. In addition, the refund will be applied to any amounts still owed to the IRS, or a state tax agency, and may be used to offset unpaid child support or past due federal debts, such as student loans.

By failing to file a tax return, people stand to lose more than just their refund of taxes withheld or paid during 2013. Many low-and-moderate income workers may have been eligible for the Earned Income Tax Credit (EITC). For 2013, the credit was worth as much as $6,044. The EITC helps individuals and families whose incomes are below certain thresholds. The thresholds for 2013 were:

  • $46,227 ($51,567 if married filing jointly) for those with three or more qualifying children;
  • $43,038 ($48,378 if married filing jointly) for people with two qualifying children;
  • $37,870 ($43,210 if married filing jointly) for those with one qualifying child, and;
  • $14,340 ($19,680 if married filing jointly) for people without qualifying children.

Current and prior year tax forms (such as the Tax Year 2013 Form 1040, 1040A and 1040EZ) and instructions are available on the IRS.gov Forms and Publications page or by calling toll-free: 800- TAX-FORM (800-829-3676). Taxpayers who are missing Forms W-2, 1098, 1099 or 5498 for the years 2013, 2014 or 2015 should request copies from their employer, bank or other payer.

Taxpayers who are unable to get missing forms from their employer or other payer should go to IRS.gov and use the “Get Transcript Online” tool to obtain a Wage and Income transcript.  Taxpayers can also file Form 4506-T to request a transcript of their 2013 income. A Wage and Income transcript shows data from information returns we receive such as Forms W-2, 1099, 1098 and Form 5498, IRA Contribution Information. Taxpayers can use the information on the transcript to file their tax return.

State-by-state estimates of individuals who may be due 2013 tax refunds: 

State or District

Estimated

Number of

Individuals

Median

Potential

Refund

Total

Potential

Refunds*

Alabama

18,100

$729

$17,549,000

Alaska

4,700

$917

$5,665,000

Arizona

24,800

$650

$22,642,000

Arkansas

9,900

$722

$9,571,000

California

97,200

$696

$93,406,000

Colorado

20,200

$699

$19,454,000

Connecticut

11,500

$846

$12,691,000

Delaware

4,300

$776

$4,321,000

District of Columbia

3,200

$762

$3,341,000

Florida

66,900

$776

$67,758,000

Georgia

34,400

$671

$32,082,000

Hawaii

6,500

$793

$6,876,000

Idaho

4,500

$619

$3,919,000

Illinois

40,000

$834

$42,673,000

Indiana

21,700

$788

$22,060,000

Iowa

10,200

$808

$10,193,000

Kansas

11,100

$746

$10,700,000

Kentucky

12,900

$772

$12,627,000

Louisiana

20,300

$767

$21,209,000

Maine

4,000

$715

$3,645,000

Maryland

22,200

$770

$23,080,000

Massachusetts

23,000

$838

$24,950,000

Michigan

33,600

$763

$33,998,000

Minnesota

15,600

$691

$14,544,000

Mississippi

10,400

$702

$10,041,000

Missouri

22,400

$705

$20,787,000

Montana

3,600

$727

$3,480,000

Nebraska

5,300

$745

$5,084,000

Nevada

12,300

$753

$12,078,000

New Hampshire

4,400

$892

$4,930,000

New Jersey

29,900

$873

$33,207,000

New Mexico

8,100

$753

$8,162,000

New York

54,700

$847

$59,416,000

North Carolina

29,800

$656

$26,874,000

North Dakota

2,900

$888

$3,209,000

Ohio

36,000

$749

$34,547,000

Oklahoma

17,700

$773

$17,979,000

Oregon

15,500

$658

$14,188,000

Pennsylvania

39,400

$835

$41,078,000

Rhode Island

2,900

$796

$2,906,000

South Carolina

12,100

$674

$11,267,000

South Dakota

2,700

$823

$2,709,000

Tennessee

19,500

$743

$18,829,000

Texas

104,700

$829

$115,580,000

Utah

7,900

$667

$7,443,000

Vermont

2,000

$747

$1,859,000

Virginia

29,000

$752

$29,578,000

Washington

27,600

$829

$30,330,000

West Virginia

5,000

$855

$5,258,000

Wisconsin

12,700

$675

$11,619,000

Wyoming

2,800

$911

$3,189,000

Totals

1,042,100

$763

$1,054,581,000

 * Excluding the Earned Income Tax Credit and other credits. 

March 8, 2017 in Tax Compliance | Permalink | Comments (0)

Sunday, March 5, 2017

Government of Canada Efforts to Crack Down on Tax Cheats

Canadians work hard for their money and the majority pay their taxes, but some wealthy individuals participate in complex tax schemes to evade paying their fair share. The Government of Canada is working hard to crack down on offshore tax evasion and aggressive tax avoidance in order to ensure a tax system that is more responsive and fair for all Canadians.

The Honourable Diane Lebouthillier, Minister of National Revenue, this week tabled the Government of Canada’s response to the House of Commons Standing Committee on Government_of_Canada_signature.svgFinance’s report entitled: The Canada Revenue Agency, Tax Avoidance and Tax Evasion: Recommended Actions. In doing so, Minister Lebouthilier accepted all the recommendations in the report, and reiterated the Government’s commitment to combat tax cheating at home and abroad and to keep Canadians apprised of these efforts.

With the Government of Canada’s investment of $444 million in the Canada Revenue Agency (CRA), the Agency is delivering concrete results.The Agency has already started the work to reassure hard working Canadians that wealthy taxpayers can’t buy their way out of paying their fair share:

  • The CRA is on track to recover over $13 billion this fiscal year alone from audit efforts.
  • The CRA has increased the number of teams focused on large multinational corporations and increased the number of auditors assigned to detect offshore non-compliance.
  • The CRA has set up a team to focus exclusively on promoters of offensive tax schemes.
  • Audits of the highest risk taxpayers for four offshore jurisdictions are underway. The first two jurisdictions targeted were the Isle of Man and Guernsey. Two other jurisdictions of concern cannot be named at the moment, in order to avoid compromising these audits. So far, a total of 41,000 international financial transactions, equaling over $12 billion, have been analyzed.

This announcement reinforces the Government of Canada’s commitment to continue to build its capacity to crack down on tax evasion and aggressive tax avoidance. The Government has the tools to correct non-compliant behaviors as well as when appropriate, impose serious penalties; and, communicate transparently its activities and results to Canadians.

 

Quotes

"The Government of Canada is taking action to crack down on tax cheats. When some choose not to pay their share, it places an unfair burden on the tax system. We are sending another strong signal to tax cheats: that this behaviour will not be tolerated and they will face the full force of the law. Our Government will continue to update Canadians on these important actions to ensure a tax system that is responsive, fair and meets the needs of all Canadians." 

-The Honourable Diane Lebouthillier, Minister of National Revenue

Quick Facts

  • In April 2016, the Offshore Compliance Advisory Committee (OCAC) – an independent committee composed of experts with significant legal and tax administration experience – was created to advise the Minister and the CRA on strategies to combat offshore tax evasion and avoidance. On December 5, 2016, the Minister of National Revenue received the OCAC’s report on the Voluntary Disclosures Program (VDP), which contains recommendations to enhance the VDP and improve it for the benefit of Canadians. The insight provided by the OCAC will help inform the CRA’s next steps to ensure that the VDP is delivered in a fair and effective manner. The OCAC’s report is available on the CRA website.‎
  • In June 2016, the CRA published a first conceptual study on the tax gap. The CRA will build on this report and has committed to publishing a series of additional papers on other aspects of the tax gap over the next two to three years.
  • The Agency has been tracking international electronic funds transfers (EFT) of over $10,000. Based on the information collected, the Agency is currently reviewing over 41,000 transactions, worth over $12 billion, in four jurisdictions of concern. Four additional jurisdictions will now be reviewed every year and every EFT of over $10,000 will be analyzed to identify high risk taxpayers.
  • Between April 1, 2011 and March 31, 2016, the CRA convicted 42 taxpayers with offshore links of tax evasion, involving $34 million in federal taxes evaded, court fines of $12 million, and 734 months of jail time.
  • Overall, the CRA is currently conducting audits of over 820 taxpayers and criminally investigating 20 cases of tax evasion related to offshore accounts.

Associated Links

March 5, 2017 in GATCA, Tax Compliance | Permalink | Comments (0)

Thursday, March 2, 2017

A Brief Definition of Insurance (Guest Post by F. Hale Stewart, JD. LL.M.)

Once again, the IRS has placed “certain” captive insurance structures on their Dirty Dozen list.  This latest inclusion argues that certain structures “… lack many of the attributes of Hale stewartgenuine insurance.  It therefore seems appropriate to briefly explain the common law definition of insurance.  What follows is a brief summation of the primary components of insurance as developed over approximately 150 years of common law.  For a more detailed treatment, please contact F. Hale Stewart at 832.330.4101 or Halestewart@halestewartlaw.com. 

I.) The Legal Definition of Insurance

Essentially, insurance is a contract by which one party (the insurer), for a consideration that usually is paid in money, either in a lump sum or at different times during the continuance of the risk, promises to make a certain payment, usually of money, upon the destruction or injury of “something” in which the other party (the insured) has an interest.[1]

In addition to all contractual elements that must be present, a valid insurance contract must also contain an insurable interest,[2] a definable risk,[3] risk shifting and risk distribution.[4]  While the basic elements of a contract are beyond the scope of this article, the four additional elements required for a valid insurance contract will be explained in the order previously presented.

a.) Insurable Interest

     The historical roots of this policy date back to England when maritime insurance was sold to an insured whether or not he had a personal or financial interest in the ship or cargo. This sales practice “caused many pernicious practices, whereby great numbers of ships with their cargoes, [were] either … fraudulently lost or destroyed.”[5]  The second root of the insurable interest doctrine is judicial policy to prevent using insurance for gambling or wagering.[6]  During the 1800s, people purchased life insurance on famous elderly persons as a way to speculate on the time of their death.[7]  This practice displaces the primary purpose of insurance -- to protect the purchaser against unforeseen losses that directly impact his personal or financial interests.[8]  The third root of the insurable interest doctrine is the prevention of waste[9] by preventing non-essential insurance policies (such as those previously mentioned) from being written.

     A person has an insurable interest in property “when he or she will derive a pecuniary benefit or advantage from its preservation or will suffer a pecuniary loss or damage from its destruction, termination or injury by the happening of the event insured against.”[10]  The interest can exist in law or equity[11] and can be found in a legal interest that is slight,[12] contingent or beneficial.[13]  In fact, outright ownership or title of ownership is not relevant to the inquiry.[14]  Obviously, courts construe the interest very liberally.[15]  The amount of insurance purchased cannot be disproportionate to the insurable interest or the court will rule the insurance policy is a wagering contract and therefore void against public policy.[16]

b.) Risk of Loss

     The primary purpose of an insurance contract is to transfer risk, which is an unforeseen and uncertain event that is a “disadvantage to the party insured.”[17]  The insured can’t prevent the risk from occurring;[18] it must be accidental[19]  or “fortuitous,” also defined as

‘…an event which so far as the parties to the contract are aware, is dependent on chance.  It must be beyond the power of any human being to bring the event to pass; it may be within the control of third persons; it may even be a past event, such as the loss of a vessel, provided that the fact is unknown to the parties.’[20]

Fortuitous should not be confused with natural degradation or depreciation – which is foreseeable but whose timing is predictable.  In contrast, a fortuitous event is unforeseen and its timing is unknown, thereby impacting the insured when he is less prepared to mitigate the damages.[21]  The unknown or unforeseen element of the fortuity definition is best explained by the three primary fortuity-related defenses insurers offer to challenge an insured’s claim, the first of which is the “known loss” defense, where an insurer will argue the loss had “already occurred or [the insured should have known] the loss already occurred at the time the policy was written.”[22]  The second fortuity related loss defense is the “known risk” defense, where the insured knew the probability of loss was so high as to warrant some type of advance preparation or attempt to avoid the event on the part of the insured.[23]  “Loss in progress” is the third defense, which the insurer will argue when the loss was preceding at the time the insured purchased the insurance contract.[24]  The one common element to all of these defenses is actual or legally impugned knowledge on the part of the insured of the risk actually occurring or having a statistically significant possibility of occurring when he purchases the policy.

c.) Risk Shifting and Risk Distribution

     The concept of risk shifting and risk distribution was originally advanced in the case Helvering v. LeGierse[25] where an 80-year old woman purchased an annuity and life insurance contract from the Connecticut General Life Insurance Company.[26]  The woman paid $4,179.00 for the annuity – which paid $589.80 per year for woman’s life -- and $22,946 for a $25,000 life insurance policy making her total consideration $27,125.[27]  The woman did not have to take a physical for the life insurance policy nor answer any typical questions associated with similar transactions.[28]  The difference between the total consideration paid and the life insurance face value was $2,125.00, which means the insurance company received 3.6 years of annuity payments as consideration for the annuity contract.  Given the woman’s advanced age, the fact no physical was required, and the high premium amount, it seems likely the parties were well aware the woman would soon die, which she did a month after purchasing the contracts.[29]  The daughter did not include the life insurance receipts in her gross income, while the Commissioner argued the receipts were income.[30]

     The court noted that insurance involves “risk shifting and risk distribution;” that insurance shifts the risk of loss from those who would be harmed and distributes the loss of premature death among other, similar risks to limit the losses impact.”[31]  Next, the court stated the transactions should be analyzed together, as the insurance company would not sell one without the other.[32]  Finally, the court noted the transaction was not insurance, because

The total consideration was prepaid and exceeded the face value of the insurance policy.  The excess financed loading and other incidental charges.  Any risk that prepayment would earn less than the amount paid to respondent as an annuity was an investment risk similar to the risk assumed by a bank; it was not an insurance risk.[33]

The Helvering decision does not offer more in the way of definition or guidance as to the specifics of risk shifting or risk distribution.  Thankfully, these terms have a rich history.  Perhaps the best definition of risk shifting is found in a Private Letter Ruling:

Risk shifting occurs when a person facing the possibility of economic loss transfers some or all of the financial consequences of the potential loss to the insurer….If the insured has shifted its risk to the insurer, then a loss by the insured does not affect the insured because the loss is offset by the insurance payment.[34]

In other words, when an unforeseen risk occurs to the insured, he is made whole by the payment from the insurer.  Risk shifting is seen from the insured’s perspective, whereas risk distribution is seen from the insurer’s perspective.

      Risk distribution utilizes the law of large numbers, which is best explained with an example.  Suppose an insurance company only insures single, male drivers aged 30-40.  Assume further that 5% of the entire population of these drivers has an accident every year.  The larger the population of male drivers aged 30-40 that the insurer can insure, the closer the insurers loss experience will come to that of the entire population of these drivers.  Or put another way, “[t]he basic idea of the law of large numbers is that we can be more certain about the future experience of large groups in the aggregate than we can be about the future experience of any particular individuals in that group.”[35]

Distributing risk allows the insurer to reduce the possibility that a single costly claim will exceed the amount taken in as a premium and set aside for the payment of such a claim. Insuring many independent risks in return for numerous premiums serves to distribute risk. By assuming numerous relatively small, independent risks that occur randomly over time, the insurer smoothes out losses to match more closely its receipt of premiums. [citation omitted] Risk distribution necessarily entails a pooling of premiums, so a potential insured is not in significant part paying for its own risks. [citation omitted].[36]

 

[1] 1 Couch on Insurance Section 1:6

[2] 1A Couch on Insurance Section 17:1

[3]  Id

[4]  Helvering v. LeGierse,  312 U.S. 531, 540 (1941)

[5] Robert H. Jerry II, New Appleman on Insurance Law Library Edition, © 2009 Matthew Bender and Co. Section 1.05

[6] 44 Am. Jur. 2d Insurance Section 934

[7] Appleman, Section 1.05

[8] Id

[9] Id

[10] 44 C.J.S. Insurance Section 318

[11] Id

[12] Id

[13] 44 Am. Jur. 2d Insurance Section 932

[14] Id

[15] 44 C.J.S. Insurance Section 319

[16] 3 Couch on Ins. Section 41:2

[17] 1A Couch on Insurance Section 17.7

[18] Id

[19] Appleman, Section 1.05[2][a]

[20] Appleman, section 1.05[2][b]

[21] Id

[22] Id

[23] Id

[24] Id

[25] Helvering v. LeGierse, 312 U.S. 531 (1941)

[26] Id at 532

[27] Id

[28] Id

[29] Id

[30] Id

[31] Id at 541

[32] Id

[33] Id at 542

[34] PLR 200518010, January 21, 2005

[35] Tom Baker , Insurance Law and Policy, © 2008 Aspen Publishers, page 3

[36] PLR 200518010, January 21, 2005

March 2, 2017 in Tax Compliance | Permalink | Comments (0)

Thursday, February 23, 2017

Spanish Royal Family Member Sentenced to Prison for Tax Evasion and Theft of Public Funds

El Pais story here

NBC News story here: "The king of Spain's brother-in-law was found guilty of fraud and tax evasion and sentenced to more than six years in prison on Friday. ..."

February 23, 2017 in Tax Compliance | Permalink | Comments (0)

Wednesday, February 22, 2017

European Commission Finds Spain Penalties for Non Reporting of Foreign-Held Assets are Discriminatory and Not Proportionate

The European Commission sent a reasoned opinion to Spain today requesting to change its rules on assets held in other EU or the European Economic Area (EEA) Member States EU Council("Modelo 720").

While the Commission takes the view that Spain has the right to require taxpayers to provide its authorities with information on certain assets held abroad, the fines charged for failure to comply are disproportionate. As fines are much higher than penalties applied in a purely national situation, the rules may deter businesses and private individuals from investing or moving across borders in the single market.  Such provisions are consequently discriminatory and in conflict with the fundamental freedoms in the EU. In the absence of a satisfactory response within two months, the Commission may refer the Spanish authorities to the Court of Justice of the EU.

February 22, 2017 in GATCA, Tax Compliance | Permalink | Comments (0)

Saturday, February 18, 2017

IRS Summarizes "Dirty Dozen" List of Tax Scams for 2017

Here is a recap of this year's "Dirty Dozen" scams:

Phishing: Taxpayers need to be on guard against fake emails or websites looking to steal personal information. The IRS will never initiate contact with taxpayers via email about a bill Irs_logo or refund. Don’t click on one claiming to be from the IRS. Be wary of emails and websites that may be nothing more than scams to steal personal information. (IR-2017-15)

Phone Scams: Phone calls from criminals impersonating IRS agents remain an ongoing threat to taxpayers. The IRS has seen a surge of these phone scams in recent years as con artists threaten taxpayers with police arrest, deportation and license revocation, among other things. (IR-2017-19)

Identity Theft: Taxpayers need to watch out for identity theft especially around tax time. The IRS continues to aggressively pursue the criminals that file fraudulent returns using someone else’s Social Security number. Though the agency is making progress on this front, taxpayers still need to be extremely cautious and do everything they can to avoid being victimized. (IR-2017-22)

Return Preparer Fraud: Be on the lookout for unscrupulous return preparers. The vast majority of tax professionals provide honest high-quality service. There are some dishonest preparers who set up shop each filing season to perpetrate refund fraud, identity theft and other scams that hurt taxpayers. (IR-2017-23)

Fake Charities: Be on guard against groups masquerading as charitable organizations to attract donations from unsuspecting contributors. Be wary of charities with names similar to familiar or nationally known organizations. Contributors should take a few extra minutes to ensure their hard-earned money goes to legitimate and currently eligible charities. IRS.gov has the tools taxpayers need to check out the status of charitable organizations. (IR-2017-25)

Inflated Refund Claims: Taxpayers should be on the lookout for anyone promising inflated refunds. Be wary of anyone who asks taxpayers to sign a blank return, promises a big refund before looking at their records or charges fees based on a percentage of the refund. Fraudsters use flyers, advertisements, phony storefronts and word of mouth via community groups where trust is high to find victims. (IR-2017-26)

Excessive Claims for Business Credits: Avoid improperly claiming the fuel tax credit, a tax benefit generally not available to most taxpayers. The credit is usually limited to off-highway business use, including use in farming. Taxpayers should also avoid misuse of the research credit. Improper claims often involve failures to participate in or substantiate qualified research activities and/or satisfy the requirements related to qualified research expenses. (IR-2017-27)

Falsely Padding Deductions on Returns: Taxpayers should avoid the temptation to falsely inflate deductions or expenses on their returns to pay less than what they owe or potentially receive larger refunds. Think twice before overstating deductions such as charitable contributions and business expenses or improperly claiming credits such as the Earned Income Tax Credit or Child Tax Credit. (IR-2017-28)

Falsifying Income to Claim Credits: Don’t invent income to erroneously qualify for tax credits, such as the Earned Income Tax Credit. Taxpayers are sometimes talked into doing this by con artists. Taxpayers should file the most accurate return possible because they are legally responsible for what is on their return. This scam can lead to taxpayers facing large bills to pay back taxes, interest and penalties. In some cases, they may even face criminal prosecution. (IR-2017-29)

Abusive Tax Shelters: Don’t use abusive tax structures to avoid paying taxes. The IRS is committed to stopping complex tax avoidance schemes and the people who create and sell them. The vast majority of taxpayers pay their fair share, and everyone should be on the lookout for people peddling tax shelters that sound too good to be true. When in doubt, taxpayers should seek an independent opinion regarding complex products they are offered. (IR-2017-31)

Frivolous Tax Arguments: Don’t use frivolous tax arguments to avoid paying tax. Promoters of frivolous schemes encourage taxpayers to make unreasonable and outlandish claims even though they have been repeatedly thrown out of court. While taxpayers have the right to contest their tax liabilities in court, no one has the right to disobey the law or disregard their responsibility to pay taxes. The penalty for filing a frivolous tax return is $5,000. (IR-2017-33)

Offshore Tax Avoidance: The recent string of successful enforcement actions against offshore tax cheats and the financial organizations that help them shows that it’s a bad bet to hide money and income offshore. Taxpayers are best served by coming in voluntarily and getting caught up on their tax-filing responsibilities. The IRS offers the Offshore Voluntary Disclosure Program  to enable people to catch up on their filing and tax obligations. (IR-2017-35)

February 18, 2017 in Tax Compliance | Permalink | Comments (0)

Tuesday, February 7, 2017

IRS LB&I Launches 13 Compliance & Audit Campaigns

IRS Announces Initial Rollout of Campaigns

The IRS Large Business and International division has announced  the identification and selection of 13 campaigns. This is a significant milestone for LB&I in the campaign effort. LB&I Irs_logois moving toward issue-based examinations and a compliance campaign process in which the organization decides which compliance issues that present risk require a response in the form of one or multiple treatment streams to achieve compliance objectives. This approach makes use of IRS knowledge and deploys the right resources to address those issues

The campaigns are the culmination of an extensive effort to redefine large business compliance work and build a supportive infrastructure inside LB&I. Campaign development requires strategic planning and deployment of resources, training and tools, metrics and feedback. LB&I is investing the time and resources necessary to build well-run and well-planned compliance campaigns.

These campaigns were identified through LB&I extensive data analysis, suggestions from IRS compliance employees and feedback from the tax community. LB&I's goal is to improve return selection, identify issues representing a risk of non-compliance, and make the greatest use of limited resources.

As part of this effort, LB&I leaders will continue discussion with the tax community to assist with work on these areas to best meet the needs of the taxpayers as well as tax administration. These discussions will also help in determining additional areas for future campaigns.  

The 13 campaigns selected for this initial rollout are:

  • IRC 48C Energy Credit Campaign

The Practice Area is Enterprise Activities

Lead Executive: Kathy Robbins

This campaign ensures that only those taxpayers whose advanced energy projects were approved by the Department of Energy, and who have been allocated a credit by the IRS, are claiming the credit. These credits must be pre-approved through extensive application to the DOE. The treatment stream for this campaign will be soft letters and issue-focused examinations.

  • OVDP Declines-Withdrawals Campaign

The Practice Area is Withholding & International Individual Compliance

Lead Executive: Pamela Drenthe

The Offshore Voluntary Disclosure Program (OVDP) allows U.S. taxpayers to voluntarily resolve past non-compliance related to unreported offshore income and failure to file foreign information returns. This campaign addresses OVDP applicants who applied for pre-clearance into the program but were either denied access to OVDP or withdrew from the program of their own accord. Taxpayers, who have yet to resolve their non-compliance and who meet the eligibility criteria, are encouraged to consider entering one of the offshore programs currently available. The IRS will address continued noncompliance through a variety of treatment streams including examination.

  • Domestic Production Activities Deduction, Multi-Channel Video Program Distributors (MVPD’s) and TV Broadcasters

The Practice Area is Enterprise Activities

Lead Executive: Kathy Robbins

Multi-channel Video Programing Distributors (MVPDs) and TV Broadcasters often claim that “groups” of channels or programs are a qualified film eligible for the IRC Section 199 deduction. Taxpayers are asserting that they are the producers of a qualified film when distributing channels and subscriptions packages that often include third-party produced content. Additionally, MVPD taxpayers maintain that they provide online access to computer software for the customers’ direct use (incident to taxpayers’ transmission activities, including customers’ use of the set-top boxes). LB&I has developed a strategy to identify taxpayers impacted by these issues and will develop training to aid revenue agents in examining them. The treatment streams for this campaign include the development of an externally published practice unit, potential published guidance, and issue based exams, when warranted.

  • Micro-Captive Insurance Campaign

The Practice Area is Enterprise Activities

Lead Executive: Gloria Sullivan

This campaign addresses transactions described in Transactions of Interest Notice 2016-66, in which a taxpayer attempts to reduce aggregate taxable income using contracts treated as insurance contracts and a related company that the parties treat as a captive insurance company. Each entity that the parties treat as an insured entity under the contracts claims deductions for insurance premiums. The manner in which the contracts are interpreted, administered, and applied is inconsistent with arm’s length transactions and sound business practices. LB&I has developed a training strategy for this campaign. The treatment stream for this campaign will be issue-based examinations.

  • Related Party Transactions Campaign

The Practice Area is Enterprise Activities

Lead Executive: Peter Puzakulics

This campaign focuses on transactions between commonly controlled entities that provide taxpayers a means to transfer funds from the corporation to related pass through entities or shareholders. LB&I is allocating resources to this issue to determine the level of compliance in related party transactions of taxpayers in the mid-market segment. The treatment stream for this campaign is issue-based examinations.

  • Deferred Variable Annuity Reserves & Life Insurance Reserves IIR Campaign

The Practice Area is Enterprise Activities

Lead Executive: Kathy Robbins

The IRS and Chief Counsel have agreed to accept the Deferred Variable Annuity Reserves and Life Insurance Reserves issues into the IIR program (pursuant to Rev. Proc. 2016-19) to develop guidance to address uncertainties on issues important to the Life Insurance Industry. The issues include amounts to be taken into account in determining tax reserves for both deferred variable annuities with Guaranteed Minimum Benefits, and Life Insurance contracts. The campaign's objective is to collaborate with industry stakeholders, Chief Counsel and Treasury to develop published guidance that provides certainty to taxpayers regarding these related issues.

  • Basket Transactions Campaign

The Practice Area is Enterprise Activities

Lead Executive: Gloria Sullivan

This campaign addresses structured financial transactions described in Notices 2015-73 and 74, in which a taxpayer attempts to defer and treat ordinary income and short-term capital gain as long-term capital gain. The taxpayer treats the option or other derivative as open until a barrier event occurs, and, therefore, does not recognize or report current period gains. The gains are deferred until the contract terminates, at which time the overall net gain is reported as a Long Term Capital Gain. LB&I has developed a training strategy for this campaign. The treatment streams for this campaign will be issue-based examinations, soft letters to Material Advisors and practitioner outreach.

  • Land Developers - Completed Contract Method (CCM) Campaign

The Practice Area is Enterprise Activities

Lead Executive: Peter Puzakulics

Large land developers that construct in residential communities may be improperly using the Completed Contract Method (CCM) of accounting. A developer, whose average annual gross receipts exceed $10 million, may only use the CCM under a home construction contract. In some cases, developers are improperly deferring all gain until the entire development is completed. LB&I will provide training for revenue agents assigned to work this issue. The treatment stream includes development of a practice unit, issuance of soft letters, and follow-up with issue based examinations when warranted.

  • TEFRA Linkage Plan Strategy Campaign

The Practice Area is Pass-Through Entities

Lead Executive: Cliff Scherwinski

As partnerships have become larger and more complex, LB&I has regularly revised processes to assess tax on the terminal investors. Recent legal advice provides an opportunity to make significant changes to how we approach this process. This campaign focuses on developing new procedures and technology to work collaboratively with the revenue agent conducting the TEFRA partnership examination to identify, link and assess tax to the terminal investors that pose the most significant compliance risk.

  • S Corporation Losses Claimed in Excess of Basis Campaign

The Practice Area is Pass-Through Entities

Lead Executive: Holly Paz

S corporation shareholders report income, losses and other items passed through from their corporation. The law limits losses and deductions to their basis in the corporation. LB&I has found that shareholders claim losses and deductions to which they are not entitled because they do not have sufficient stock or debt basis to absorb these items. LB&I has developed technical content for this campaign that will aid revenue agents as they examine the issue. The treatment streams for this campaign will be issue-based examinations, soft letters encouraging voluntary self-correction, conducting stakeholder outreach, and creating a new form for shareholders to assist in properly computing their basis.

  • Repatriation Campaign

The Practice Area is Cross Border Activities

Lead Executive: John Hinding

LB&I is aware of different repatriation structures being used for purposes of tax free repatriation of funds into the U.S. in the mid-market population. It has also been determined that many of the taxpayers do not properly report repatriations as taxable events on their filed returns. The goal of this campaign is to simultaneously improve issue selection filters while conducting examinations on identified, high risk repatriation issues and thereby increase taxpayer compliance.

  • Form 1120-F Non-Filer Campaign

The Practice Area is Cross Border Activities

Lead Executive: John Hinding

Foreign companies doing business in the U.S. are often required to file Form 1120-F. LB&I has data suggesting that many of these companies are not meeting their filing obligations. In this campaign, LB&I will use various external data sources to identify these foreign companies and encourage them to file their required returns. The treatment stream for this campaign will involve soft letter outreach. If the companies do not take appropriate action, LB&I will conduct examinations to determine the correct tax liability. The goal is to increase voluntary compliance by foreign corporations with a U.S. business nexus.

  • Inbound Distributor Campaign

The Practice Area is Treaty and Transfer Pricing Operations

Lead Executive: Sharon Porter

U.S. distributors of goods sourced from foreign-related parties have incurred losses or small profits on U.S. returns, which are not commensurate with the functions performed and risks assumed. In many cases, the U.S. taxpayer would be entitled to higher returns in arms-length transactions. LB&I has developed a comprehensive training strategy for this campaign that will aid revenue agents as they examine this IRC Section 482 issue. The treatment stream for this campaign will be issue-based examinations.

These campaigns represent the first wave of LB&I's issue-based compliance work. More campaigns will continue to be identified, approved and launched in the coming months.

February 7, 2017 in Tax Compliance | Permalink | Comments (0)

Saturday, January 21, 2017

Congressional Staffer Sentenced to Prison for Failure to File Income Tax Returns

A congressional staffer was sentenced to prison today for willfully failing to file an individual income tax return, announced Principal Deputy Assistant Attorney General Caroline D. Ciraolo, head of the Justice Department’s Tax Division, and U.S. Attorney Dana J. Boente for the Eastern District of Virginia.

According to documents filed with the court, Issac Lanier Avant, a resident of Arlington, Virginia, has been employed by the U.S. House of Representatives as a Chief of Staff since Irs_logo2002. In December 2006, Avant assumed the additional role of Democratic Staff Director for the House Committee on Homeland Security. Despite earning more than $165,000, Avant failed to timely file his 2009 through 2013 individual income tax returns, causing a tax loss of $153,522. Avant had no federal income withheld during those years because in May 2005, he caused a form to be filed with his employer that falsely claimed he was exempt from federal income taxes. Avant did not have any federal tax withheld from his paycheck until the Internal Revenue Service (IRS) mandated that his employer begin withholding in January 2013. Avant did not file tax returns until after he was interviewed by federal agents.

The court imposed a prison term of approximately 4 months, consisting of 30 days incarceration, followed by incarceration every weekend for 12 months. Avant was also ordered to serve a one-year term of supervised release and to pay restitution in the amount of $149,962 to the IRS.

Principal Deputy Assistant Attorney General Ciraolo and U.S. Attorney Boente thanked special agents of IRS-Criminal Investigation and the FBI, who conducted the investigation, and Assistant U.S. Attorney Jack Hanly and Assistant Chief Todd Ellinwood of the Tax Division, who are prosecuting the case.

January 21, 2017 in Tax Compliance | Permalink | Comments (2)

Tuesday, December 13, 2016

IRS Publishes 2017 Standard Mileage Rates for Business, Medical and Moving

The Internal Revenue Service today issued the 2017 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes.

Beginning on Jan. 1, 2017, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

  • 53.5 cents per mile for business miles driven, down from 54 cents for 2016
  • 17 cents per mile driven for medical or moving purposes, down from 19 cents for 2016
  • 14 cents per mile driven in service of charitable organizations

The business mileage rate decreased half a cent per mile and the medical and moving expense rates each dropped 2 cents per mile from 2016. The charitable rate is set by statute and Irs_logoremains unchanged.   The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs.

Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.

A taxpayer may not use the business standard mileage rate for a vehicle after using any depreciation method under the Modified Accelerated Cost Recovery System (MACRS) or after claiming a Section 179 deduction for that vehicle. In addition, the business standard mileage rate cannot be used for more than four vehicles used simultaneously.

These and other requirements are described in Rev. Proc. 2010-51. Notice 2016-79, posted today on IRS.gov, contains the standard mileage rates, the amount a taxpayer must use in calculating reductions to basis for depreciation taken under the business standard mileage rate, and the maximum standard automobile cost that a taxpayer may use in computing the allowance under a fixed and variable rate plan.

December 13, 2016 in Tax Compliance | Permalink | Comments (0)

Thursday, December 8, 2016

IRS Tax Stats 2016

The Internal Revenue Service today announced that the fall 2016 issue of the Statistics of Income Bulletin is available on IRS.gov. The Statistics of Income (SOI) Division produces the Irs_logoonline Bulletin quarterly, providing the most recent data available from various tax and information returns filed by U.S. taxpayers. This issue includes articles on the following topics:

  • Sole Proprietorship Returns, Tax Year 2014: For Tax Year 2014, taxpayers reported nonfarm sole proprietorship activity on approximately 24.6 million individual income tax returns, a 2.3-percent increase from 2013. Profits rose to $317.1 billion for 2014, up almost 5 percent from the previous year. 
  • Partnership Returns, Tax Year 2014: The number of partnerships and partners in the United States continued to increase for Tax Year 2014. Partnerships filed more than 3.6 million returns for the year, representing more than 27 million partners. 
  • Transactions Between Large Foreign-Owned Domestic Corporations and Foreign Related Persons, Tax Year 2010: The total value of nonloan transactions between large foreign-owned domestic corporations and related foreign parties amounted to $1.208 trillion for Tax Year 2010, a 1.8-percent increase from the 2008 study’s $1.187 trillion.  

Partnership Returns, 2014
By Ron DeCarlo and Nina Shumofsky

Partnership Returns, Tax Year 2014. The number of partnerships and partners in the United States continued to increase for Tax Year 2014. Partnerships filed more than 3.5 million returns for the year, representing more than 27 million partners. The real estate and leasing sector contained more than half of all partnerships (50.3 percent) and over a quarter of all partners (28.5 percent).

 

Transactions Between Large Foreign-Owned Domestic Corporations and Related Foreign Persons, 2010
by Isaac J. Goodwin

Transactions Between Large Foreign-Owned Domestic Corporations and Foreign Related Persons, Tax Year 2010: The total value of nonloan transactions between large foreign-owned domestic corporations and related foreign parties amounted to $1.208 trillion for Tax Year 2010, a 1.8-percent increase from the 2008 study’s $1.187 trillion.  This represents the second-highest total since the inception of the study, trailing only 2006’s $1.861 trillion.  Sales (59.4 percent) and purchases of stock-in-trade (75.2 percent) represent the bulk of the total value of nonloan transactions, which is consistent with prior years.

 

Sole Proprietorship Returns, Tax Year 2014
by Adrian Dungan

Partnership Returns, Tax Year 2014: The number of partnerships and partners in the United States continued to increase for Tax Year 2014. Partnerships filed more than 3.6 million returns for the year, representing more than 27 million partners. Real estate and rental and leasing accounted for about half (50.3 percent) of all partnerships and over a quarter (28.5 percent) of all partners. Total net income (loss), or profit, increased 8.9 percent to $837.4 billion for 2014.  Ordinary business income accounted for the majority of this increase.

December 8, 2016 in Tax Compliance | Permalink | Comments (0)

Monday, December 5, 2016

US Banks Turning Over Argentinian Non-Declared Accounts to Argentina

Bloomberg reports that JP Morgan and other US Banks are contacting their Argentina clients with the news that their accounts will be closed. Read Bloomberg  

Bloomberg reports that:

Argentines who come clean on their untaxed savings by March 31 will pay a one-time fine of as much as 15 percent. They can also invest in three-year and six-year Treasury bonds or make long-term investments in infrastructure projects, housing, mortgages or small and medium-size businesses.  Under the program, participants must open a special bank account before Oct. 31 and have until Nov. 21 to deposit undeclared cash.

December 5, 2016 in Tax Compliance | Permalink | Comments (0)

Sunday, December 4, 2016

Billions of undeclared Brazilian assets captured by disclosures

Brazilian taxpayers have admitted owning some CHF50.6 billion ($52 billion) in previously undisclosed assets overseas, with Switzerland seen as one of the top potential destinations for stashing the money.  

All those holding undeclared assets in foreign institutions by December 31, 2014 were given the chance to be pardoned, in exchange for some 30% of their undeclared wealth: 15% for revenue tax and another 15% on penalty fees. See the expose on Swiss Info

Adding the taxes and fees together, the Brazilian government was able to raise $15 billion (CHF15.4 billion), which will be mostly used to help cover deficits on regional and national budgets.Data from 2015 – unrelated to the repatriation scheme efforts – shows that Brazilian investors held around $45.7 billion in currency and deposits at foreign banks.

Data from 2015 – unrelated to the repatriation scheme efforts – shows that Brazilian investors held around $45.7 billion in currency and deposits at foreign banks.

Read the Full Analysis and facts/figures at Swiss Info News

December 4, 2016 in Tax Compliance | Permalink | Comments (0)

Monday, November 28, 2016

Tax Inspectors Without Borders making significant progress

Significant progress has been made by an international program designed to enhance developing countries' ability to bolster domestic revenue collection through strengthening of OECDtax audit capacities.

The Tax Inspectors Without Borders (TIWB) project was launched in July 2015 by the Organisation for Economic Co-operation and Development (OECD) and the United Nations Development Programme (UNDP) as an innovative attempt to address widespread tax avoidance by multinational enterprises in developing countries and as a contribution towards financing the UN's Sustainable Development Goals.


TIWB organizes deployment of highly qualified tax experts to countries that request assistance with ongoing audits of multinational companies. The projects focus on revenue recovery and improving local audit capacity while sending a strong message on the need for tax compliance.

Eight pilot projects – in countries spanning the globe from Africa to Asia and Latin America – have resulted in more than $260 million in additional tax revenues to date. This includes more than $100 million in new tax revenues generated through TIWB audits in Zimbabwe, demonstrating the tremendous potential for future projects.

Thirteen projects are underway worldwide, in Botswana, Costa Rica, Ethiopia, Georgia, Ghana, Jamaica, Lesotho, Liberia, Malawi, Nigeria, Uganda, Zambia and Zimbabwe.

A range of new programs will launch in the coming year – including new deployments of auditors to Republic of Congo, Egypt, Uganda, Cameroon and Vietnam - toward the goal of 100+ deployments by 2020. This will also include the first South-South cooperation project under the TIWB initiative, which will see Kenyan auditors deployed to Botswana in 2017.

"Developing countries face serious challenges in raising domestic resources to fund basic government services, and tax avoidance by multinational enterprises is a complicating factor," said James Karanja, head of the TIWB Secretariat. "The Tax Inspectors Without Borders program is demonstrating how effective capacity building can make a difference toward the goal of ensuring that all companies pay their fair share of tax."

TIWB projects are currently being supported by a range of organizations, including revenue authorities in the Netherlands, Spain and the United Kingdom, the African Tax Administration Forum and the Paris-based TIWB Secretariat, which facilitates full-time or periodic deployment of experts for all programs.

To better fulfill its clearinghouse role – matching demands for auditing assistance with appropriate experts – and to meet growing demand for TIWB projects, the Secretariat is expanding its roster of available experts. Information on candidacies is available here.

November 28, 2016 in OECD, Tax Compliance | Permalink | Comments (0)

Friday, November 18, 2016

Interlinked system of beneficial ownership registers coming soon

The European Commission expects to have in place by next year an interconnected, pan-European system of beneficial ownership registers, as part of the fight against money laundering and tax evasion, the European Commissioner, Věra Jourová, tells MEPs of the Inquiry committee into the Panama Papers scandal.

Ms Jourová, Commissioner for Justice, Consumers and Gender equality, said the linked registers would promote cooperation between member states in the battle against money EU Parliamentlaundering, tax evasion and terrorism financing.  “We foresee having the registers, and soon, I hope next year, they should be interconnected throughout Europe.”

During the hour and half exchange with MEPs, Jourová faced questions about the effectiveness of the Commission’s measures, and particularly against the role of intermediaries.  One MEPs pointed to the example of Nordea bank which in 2015 was fined ‎just €5miilion -- compared to €5 billion in pre-tax profits --  for “major deficiencies” in their anti-money laundering compliance checks.

Jourová maintained that the sanctions -- which could amount to at least 5 million euro or at least 10 percent of annual turnover -- were “robust and strong” and had a deterrent effect.      

High-risk third countries

Under the Commission’s proposals, European banks would also have to carry out additional checks (“due diligence measures”) on financial flows originating from countries with deficiencies in their anti-money laundering and countering terrorist financing regimes.  But Jourová acknowledged that while EU legislation might be effective within Europe, its effectiveness was blunter outside.  “Viz-a-viz high-risk third countries, we are in a weak position and can only exert influence,” she said. 

Many of the European Commission’s proposals against money laundering, tax evasion and terrorist financing are contained in the 4th Anti-Money Laundering Directive (AMLD) which needs to be transposed into respective national laws by June next year.  She insisted that member states had an obligation to implement EU legislation. 

The Commissioner told MEPs that 22 member states had already been reprimanded for ”non-communication” of the 3rd AMLD,  6 of which were referred to the European Court of Justice for non-transposition.  She added that “effective enforcement of existing legislation is as important as the framework.”

Whistleblowers protection

The EU Commissioner said that the recent revelations contained in the “Panama Papers” which was triggered by an anonymous source, highlighted the need for stronger protection for whistle-- blowers.  Under EU law, whistle-blowers are protected in sectorial legislation, for example on market abuse. Jourová said the Commission was currently deciding whether to provide more protection through additional sectorial measures, or whether to adopt a horizontal approach. 

November 18, 2016 in Tax Compliance | Permalink | Comments (0)

Wednesday, November 16, 2016

"Freedom Law School" Member Sentenced To Thirty-Three Months’ Imprisonment For Tax Evasion

Used Warehouse Bank, Prepaid Debit Cards, Cashier’s Checks, and Postal Money Orders to Conceal Income and Assets From IRS

 Oakland – A resident of Point Richmond, Calif. was sentenced late yesterday to serve 33 months in prison for tax evasion, announced U.S. Attorney Brian J. Stretch, Principal Deputy Irs_logoAssistant Attorney General Caroline D. Ciraolo, head of the Justice Department’s Tax Division, and Special Agent in Charge of Internal Revenue Service-Criminal Investigation (IRS-CI) Michael T. Batdorf.

In June, Richard Thomas Grant, 63, was found guilty of three counts of tax evasion following a jury trial in Oakland, California. 

According to evidence presented at trial, in 2001, Grant stopped filing individual income tax returns and paying income taxes despite the fact that he received significant income as a partner with Grant Engineering & Manufacturing, an engineering company in Richmond.  In 2003, Grant stopped filing annual partnership returns for Grant Engineering, even though he continued to pay a CPA to prepare these returns.  That same year, Grant became a member of Freedom Law School, and paid thousands of dollars in yearly membership fees.  While the IRS attempted to collect unpaid taxes owed by Grant for 2001 and 2002, and attempted to examine Grant’s taxes for subsequent years, Grant, with the assistance of Freedom Law School, attempted to frustrate the IRS’s actions by, among other things, filing multiple law suits in various jurisdictions.  These lawsuits were unsuccessful. 

For the charged years 2005 through 2009, Grant’s partnership income was $509,339, $566,741, $486,062, $598,977, and $604,706, respectively.

In an effort to conceal his assets and income, in 2005, Grant significantly curbed the use of his checking accounts and began depositing his partnership distributions at a warehouse bank known as MyICIS in Berryville, Arkansas.  Warehouse banks can be used to conceal ownership of funds in part by commingling such funds with those of other individuals.  Between April 2005 and October 2006, Grant wrote hundreds of checks drawn on the MyICIS account and funded multiple prepaid debit cards.  Grant used the checks and debit cards to pay his mortgage and other personal expenses.

After the federal government shut down MyICIS, Grant used another bank to convert his partnership distributions to cashier’s checks and cash in order to avoid depositing the funds into a bank account and used the cashier’s checks to pay his mortgage and other high-dollar personal expenses.  He also used cash to purchase dozens of U.S. Postal money orders to pay other bills and expenses, including utilities, taxes, and expenses related to his classic aircraft.  

“Mr. Grant spent years trying to devise and implement ways to avoid paying his taxes,” said U.S. Attorney Stretch.  “In the end, his violations of the law equated to three years in jail and substantial monetary penalties.  Similar results await those who cheat on their taxes.”

“This was not a case about someone who simply fell behind in a good faith effort to keep up with their taxes, rather someone who earned millions of dollars and paid no taxes,” said Special Agent in Charge Michael T. Batdorf. “Mr. Grant moved his funds out of the traditional banking system which enabled him conceal ownership and hide his income.  Today’s sentencing sends a message that those who intentionally undermine our tax system will not go undetected and will be held accountable.”

In addition to the term of prison imposed, Grant was also ordered to serve three years of supervised release, as well as pay restitution to the IRS in the amount of $402,457.39, costs of prosecution of $4,400.90, and a fine of $7,500.  Grant was ordered to appear to begin serving his sentence on January 9, 2016,

November 16, 2016 in Tax Compliance | Permalink | Comments (0)

Tuesday, November 15, 2016

Consultation on Disincentives for advisors and intermediaries for potentially aggressive tax planning schemes

This consultation aims to gather views on whether there is a need for EU action aimed at introducing more effective disincentives for intermediaries engaged in operations that facilitate EU Commissiontax evasion and tax avoidance and in case there is, how it should be designed. Link to submit here.

This consultation wants to gather views in particular on the following:
•Need for EU action.
•The different options identified, in case EU action is appropriate.
•The key design features of a possible disclosure regime.

The results of the public consultation will be duly published, together with the responses provided.

This consultation might be complemented by further targeted consultations with Member States, experts, professional associations, think tanks and others.

November 15, 2016 in Tax Compliance | Permalink | Comments (0)

Sunday, November 6, 2016

Do Accountants Have Legal Privilege To Protect Client's Tax Information from Summons?

While the trend in Canadian jurisprudence over the last decade has been a steady increase in the protection of solicitor-client privilege, the question of its application to other Canada-revenue-agencyprofessionals, including accountants has been raised both in Canada and abroad. In 2013, the UK Supreme Court in Prudential v Special Commissions of Income Tax declined to extend solicitor-client privilege to taxpayers who seek advice from professional accountants. In the United States, federal legislation offers only narrow protection to accountants who are “federally authorized” tax practitioners.  In Canada, the courts have refused to extend solicitor-client privilege to other tax professionals unless such communication is in furtherance to a function essential to the solicitor-client relationship or the continuum of legal advice provided by the solicitor.

Canadian solicitors Christopher Steeves and Jenna Ward of Fasken Martineau DuMoulin LLP analyze whether accountants are able to exercise legal privilege to protect client's tax information from summons in the context of the recent case Redhead Equipment v Canada. Read their analysis here.

November 6, 2016 in Tax Compliance | Permalink | Comments (0)

Wednesday, October 26, 2016

The Bahamas Papers? Leaked documents of 175,000 Bahamian companies registered between 1990 and 2016

ICIJ publishes the details of 175,000 Bahamas companies leaked to it, in the ICIJ searchable offshore database.  A cache of leaked documents provides names of politicians and others Journalists logolinked to more than 175,000 Bahamian companies registered between 1990 and 2016.  The ICIJ reports that a former EU official is among the politicians uncovered in this Bahamas Papers.  

See ICIJ's new story here.

ICIJ wrote in its descriptive abstract that the new revelations reveal fresh information about offshore companies in the Bahamas.  The leaked Bahamian files reveal details of the offshore activities of prime ministers, ministers, princes and convicted felons.

Alongside detailed reporting, ICIJ is making details from the Bahamas corporate registry available to the public. This creates, for the first time, a free, online and publicly-searchable database of offshore companies set up in the island nation that has sometimes been called “The Switzerland of the West.”  

LL.M. & M.Jur. Curriculum in Risk Management?   Connect the dots across a number of issues, such as compliance, fiduciary management, and corporate governance.  Engage, innovate, and and interact in a dynamic environment that mimics the real world of risk management. Check it out here.

October 26, 2016 in GATCA, Tax Compliance | Permalink | Comments (0)

Wednesday, October 19, 2016

OECD launches business survey on tax certainty to support G20 tax agenda

The OECD received a strong endorsement from both the G20 Leaders and Finance Ministers to work on solutions to support certainty in the tax system with the aim to promote OECDinvestment, trade and balanced growth.

As part of a wider project, the OECD launches a Business Survey to invite businesses and other stakeholders to contribute their views on tax certainty.

The survey is an open and wide-spread consultation which supports the G20 future tax policy work. At the Hangzhou Summit in September 2016, the G20 Leaders emphasised the benefits of tax certainty in promoting investment, trade and balanced growth. Together with the IMF, the OECD was asked to continue working to enhance tax certainty.

Senior tax specialists are cordially invited to participate in the survey and contribute their experience and views to support the development of practical and concrete policy options aimed at fostering certainty in the tax system.

The survey will run from 18 October to 16 December 2016, and will also be an opportunity to identify specific tax policy issues for the future G20 tax agenda and to shape practical and concrete solutions for a more certain and predictable tax system.

This survey is strictly confidential and anonymous; no individual or organisation-specific information will be disclosed. Results will only be made available in aggregated format and presented to the G20 in 2017.

“This survey provides a unique opportunity for businesses to share their views and experiences related to tax certainty. Tax administrations and policy makers as well as civil society organisations will of course have later on a chance to comment on the findings”, said Pascal Saint-Amans, Director of the OECD Centre for Tax Policy and Administration.

» The Business Survey on Taxation is accessible at: http://bit.ly/oecd-tax-business-survey

» A Q&A session via webinar will be delivered on Tuesday 25 October at 15:00 (CEST). To register please go to http://bit.ly/oecd-business-survey-webinar

October 19, 2016 in BEPS, OECD, Tax Compliance | Permalink | Comments (0)

Friday, October 14, 2016

Treasury Issues Final Earnings Stripping Regulations - 518 pages

The U.S. Department of Treasury and the Internal Revenue Service (IRS) issued final regulations to address earnings stripping.  [download the 518 page unpublished Final Regs here: https://s3.amazonaws.com/public-inspection.federalregister.gov/2016-25105.pdf ]

This action will further reduce the benefits of corporate Treasury-Dept.-Seal-of-the-IRS tax inversions, level the playing field between U.S. and non-U.S. businesses, and limit the ability of companies to lower their tax bills through transactions involving debt that do not support new investment in the United States. These regulations also require large corporations claiming interest deductions to document loans to and from their affiliates, just as businesses of all sizes do when they borrow from unrelated lenders. The rules were proposed in April along with temporary anti-inversion regulations - on April 4, Treasury issued proposed regulations to address earnings stripping by strengthening the tax rules distinguishing between debt and equity.  

After a corporate inversion, multinational corporations often use a technique called earnings stripping to minimize U.S. taxes by paying deductible interest to the new foreign parent or one of its foreign affiliates in a low-tax country.  This commonly-used technique can generate large interest deductions without requiring a company to finance new investment in the United States. The new regulations restrict the ability of corporations to engage in earnings stripping by treating financial instruments that taxpayers purport to be debt as equity in certain circumstances. They also require that corporations claiming interest deductions on related-party loans provide documentation for the loans, similar to the common practice for third-party loans.  The ability to minimize income tax liabilities through the issuance of related-party financial instruments is not, however, limited to the cross-border context, so these rules also apply to related U.S. affiliates of a corporate group.

Coupled with our previous actions to address corporate inversions, today’s final regulations balance the operational needs of companies while preventing the erosion of our U.S. corporate tax base. Specifically, today’s final regulations narrowly target problematic earnings stripping transactions by – transactions that generate deductions for interest payments on related-party debt that does not finance new investment in the United States – while minimizing unintended consequences for regular business activities in the following ways:

  • Exempting cash pools and short-term loans: Treasury requested comments in the proposed regulations on whether special rules are warranted for cash pools, cash sweeps, and similar arrangements that multinational firms commonly use to manage cash among their affiliates. In response to thoughtful feedback, Treasury is providing a broad exemption for cash pools and other loans that are short-term in both form and substance, and therefore do not pose a significant earnings stripping risk.

o   Treasury and IRS expect that the exemption will generally permit companies to continue to treat as debt short-term instruments issued among related entities in the ordinary course of a group’s business.

  • Providing limited exemptions for certain entities where the risk of earnings stripping is low: 

o   Transactions between foreign subsidiaries of- U.S. multinational corporations

  • Treasury has determined the income tax consequences of mischaracterizing equity instruments as debt in these circumstances are limited.

o   Transactions between S-corporations

  • Treasury has determined that the income tax consequences of mischaracterizing equity instruments as debt in these circumstances are limited.

o   Transactions between regulated financial companies

  • These firms are already subject to supervisory and regulatory requirements that restrict their ability to issue intercompany debt.

o   Transactions between regulated insurance companies

  • Like regulated financial institutions, insurance companies subject to state insurance regulation have limited ability to issue instruments inappropriately characterized as debt.

o   Transactions between mutual funds (RICs) and real estate investment trusts (REITs), other than those owned by affiliated groups of companies

  • Treasury has determined that the income tax consequences of mischaracterizing equity instruments as debt for these investment vehicles are limited.
  • Expanding exceptions for ordinary business transactions: Treasury has expanded the exceptions for distributions (payments made to affiliated companies), to generally include future earnings and allowing corporations to net distributions against capital contributions. Treasury is also including additional exceptions for ordinary course transactions, such as acquisitions of stock associated with employee compensation plans.

o   Such distributions out of earnings and profits will not cause debt issued by a corporation to be recharacterized as equity.

  • Expanding exceptions for ordinary course transactions: Treasury is also including additional exceptions for ordinary course transactions, such as acquisitions of stock associated with employee compensation plans.
  • Easing documentation requirements: Treasury has relaxed the intercompany loan documentation rules for U.S. borrowers to ease compliance burdens while still fulfilling their purpose, including by moving the deadline for required documentation to when the tax return is due. The regulations also extend the effective date of the documentation rules by one year to January 1, 2018. 

Earlier this year, Treasury issued temporary regulations to limit inversions by disregarding foreign parent stock attributable to recent inversions or acquisitions of U.S. companies – the third step Treasury has taken since 2014 to limit inversions. The temporary regulations prevent a foreign company (including a recent inverter) that acquires multiple U.S. companies in stock-based transactions from using the resulting increase in size to avoid the current inversion thresholds for a subsequent U.S. acquisition. Treasury continues to work to finalize these regulations, which went into effect on April 4, 2016.

Treasury continues to believe that the best way to address both inversions and earnings stripping is to fix our broken business tax system, which is why we released an updated business tax reform framework in April and why we have continued to urge Congress to move forward on reform.

October 14, 2016 in Tax Compliance | Permalink | Comments (0)